NARESH PRASAD Vs. THE STATE

JUDGEMENT

(1.) This is a revision against the judgment of Sri A. K. Srivastava, III Additional Sessions Judge, Sitapur, maintaining the Judgment of Sri O.P. Misra, IV Additional Munsif Magistrate, Sitapur, whereby he sentenced the revisionist to undergo six months R.I. and a fine of Rs. 1000.00(in default to three months further R.I.) under Sec. 16 (a)(1) Prevention of Food Adulteration Act.

(2.) On 6th July, 1977, at about 6 P.M. Food Inspector Sri Y. B. Singh inspected the shop of the revisionist Naresh Prasad, who was running a Halwai shop. Milk was boiling in the 'Karhai' from which necessary samples were taken. On analysis the contents were found 4.8% and non-fatty solids 3.5%. The standard used was of buffalo milk. P. W. 1. Y. B. Singh, P. W. 2 B. B. Singh and P. W. 3 Ganga Pratap Singh were examined as eye-witnesses. The accused denied the charge. He stated that he told the Food Inspector that the milk was not for sale and it was cow's milk boiling in that 'Karahi' for preparation of sweet (Chhana). The learned Magistrate sentenced the revisionist as stated above. The matter went up in appeal which was dismissed. Hence this revision.

(3.) The revisionist was running a 'Halwai' shop, the milk was boiling in the 'Karhai' and samples were taken therefrom. In the memo Ex. Ka 3 only 'milk' is written and there is no indication regarding the class of the milk. P. W. 3 Ganga Prasad, an independent witness, has stated that the revisionist told the Food Inspector that it was cow's milk and it was for preparing sweet-meats (Chhena). An Application was moved for declaring this witness hostile but the learned Magistrate refused to treat him as a hostile witness. Inspite of that his statement was not relied upon, by the learned Magistrate. The learned appellate Judge treated this witness as hostile and disbelieved him. There seems to be no good reason to reject the statement of P. W. 3 Ganga Prasad to the effect that the accused stated that the milk was not for sale, that it was meant for preparing Chhena sweets and that it was cow's milk. It may be repeated that the milk was boiling in the 'Karhai' and the revisionist was 'Halwai'. The fat contents are 4.8 and non-fatty solids 8.5 so to my mind the standard prescribed for buffalow milk was wrongly applied while testing the milk in samples in question. The standard fixed for cow's milk is 2.3% fat and 8.5 non-fatty solids. In view of the above the conviction of the revisionist cannot be maintained.